This case comes before the Commission on the motion of the Wisconsin
Department of Revenue (the
"Department") for summary judgment. The Petitioner appears pro se in this
matter. Respondent is represented by
Attorney Sheree Robertson. The Department filed a Memorandum of Law in support of the
Motion for Summary
Judgment.

Having considered the entire record, including the motion, affidavit, exhibits
and memorandum of
law, the Commission hereby finds, rules and orders as follows:

JURISDICTIONAL FINDINGS OF FACT

1. By a Notice of Field Audit Action dated January 29, 2009, Respondent
made an assessment
against Petitioner in the amount of $28,434.88 as of March 30, 2009, for sales/use tax owed
for the period beginning
January 1, 2004 and ending December 31, 2007, related to Petitioner's Wisconsin sales to
out-of-state residents of
recreational vehicles such as snowmobiles and ATVs, and services thereto. (Affidavit of
Attorney Linda M. Mintener
dated September 9, 2010 ("Mintener Aff."), ¶ 2, Ex. 1.)

3. A Notice of Action dated March 26, 2010, was served upon Petitioner.
Respondent denied
Petitioner's Petition for Redetermination and issued an amended Exhibit A-B updating the
interest due to May 27, 2010,
for a total amount due of $31,508.55 as of May 27, 2010. Respondent stated the following
reasons for the denial:

The explanations provided in your petition for redetermination do not support
your
position that the assessment should be reduced. Since we have not received any
information supporting your position, our only alternative is to sustain the
assessment in its entirety, plus statutory mandated interest.

(Mintener Aff., ¶ 4, Ex. 3.)

4. Petitioner filed a Petition for Review with the Wisconsin Tax Appeals
Commission which
was sent by certified mail, date stamped May 21, 2010, contesting Respondent's action on
the Petition for
Redetermination, which the Wisconsin Tax Appeals Commission received on May 24, 2010.
(Mintener Aff., ¶ 5)

5. Respondent filed an Answer to the Petition for Review on June 15,
2010. (Mintener Aff.,
¶ 6)

6. On June 15, 2010, Respondent mailed, along with the Answer,
Respondent's First Request
for Admissions and First Request for Production of Documents to Petitioner, pursuant to
§ 804.11(1)(b), Stats. (Exh.
4) The cover letter stated:

Note that failure to respond within 30 days of service upon you with a denial
or
valid legal objection to an admission request will cause the statement in the request
to be deemed conclusively established for purposes of this action. Note also that
you may be assessed costs for any admission you fail to admit that Respondent later
proves is true.

(Ex. 4 at 2; Emphasis in the original)

The introduction to said Request for Admissions further states:

Failure to timely respond will cause the requests to be deemed conclusively
established for purposes of this action.

(Ex. 4 at 2; Emphasis in the original) (Mintener Aff., ¶ 7)

7. Petitioner's responses to Respondent's First Request for Admissions
and First Request for
Production of Documents were due on July 19, 2010, which is 33 days after Respondent
mailed them. As of this date,
Petitioner has not responded to either Respondent's First Request for Admissions or First
Request for Production of
Documents. (Mintener Aff., ¶ 8)

8. Respondent sent a letter to Petitioner on August 5, 2010, noting that the
statutory time to
respond to Respondent's said discovery requests had passed; informing Petitioner that the
matters in Respondent's First
Request for Admissions were deemed to be admitted and conclusively established for
purposes of this action; and
requesting Petitioner to advise Respondent immediately if it had any legitimate legal reason
to withdraw or amend the
admissions. (Mintener Aff., ¶ 9, Ex. 5.)

9. When Respondent's representative returned from vacation on August
17, 2010, Petitioner's
owner, Joe Rasmussen had left two voice mail messages, stating that Petitioner had not
responded to the discovery
because the cover letter stated that "no response was necessary." (Mintener Aff., ¶
10.)

10. On August 17, 2010, Respondent's representative returned Mr.
Rasmussen's telephone calls,
and because Mr. Rasmussen was not available, left a message for him to return the call.
Petitioner, Mr. Rasmussen,
did not return the call. (Mintener Aff., ¶ 11.)

11. Respondent called Mr. Rasmussen again on August 18, 2010, and
spoke to Mr. Rasmussen.
In their conversation, Mr. Rasmussen admitted that he had not read the entire cover letter,
and realized that the "no
response" language on the cover letter to the Answer and discovery requests applies only to
the Answer and not to the
discovery requests. (See Ex. 5 at 1.) In their conversation, the
Respondent's representative again explained that the
matters in the admission requests were now deemed admitted and were conclusively
established for purposes of this
action, and that Respondent was prepared to bring a motion for summary judgment based on
those deemed admissions.
Mr. Rasmussen then represented that he would mail to Respondent, by August 20, 2010, at
least some of the documents
that Respondent had requested in its First Request for Production of Documents or would call
to say why he could not
send them by that date. (Mintener Aff., ¶ 12.)

12. On August 20, 2010, Petitioner left a message for Respondent.
Respondent returned Mr.
Rasmussen's call on August 23, 2010. In that conversation, Mr. Rasmussen stated that he
had found "a lot of
documents"; that he had an appointment with an accountant that day to get additional
information and documents; that
he would get the information that Respondent had requested from Petitioner's bank; and that
he would send all pertinent
information and documents to Respondent's representative by August 27, 2010.
Respondent's representative explained
to Petitioner that the matters in the admissions were now deemed admitted and were
conclusively established for
purposes of this action, and that Respondent would be bringing a motion for summary
judgment if this matter could not
be settled based upon documents that Petitioner had represented that he would provide by
August 27, 2010. (Mintener
Aff., ¶ 13.)

13. Since the August 23, 2010 phone conversation with Mr. Rasmussen,
Respondent has not
received any documents from Petitioner; Respondent has not received any responses to its
First Request for Admissions
or to its First Request for Production of Documents; and Respondent has not had any further
communications from
Petitioner. (Mintener Aff., ¶ 14.)

14. On September 15, 2010, the Commission issued a Briefing Order to
both parties requiring
Petitioner to file a response to Respondent's motion by October 15, 2010.

15. After Petitioner filed no response to the briefing order by the October
15, 2010 deadline, the
Commission extended the filing deadline on its own motion to November 4, 2010.

16. By letter dated November 12, 2010, the Commission informed the
Petitioner that the
Commission would consider dismissing the Petition for Review for failure to prosecute,
unless he provided a response.
To date, the Commission has received no response to the Briefing Order or to the follow-up
letters.

ORDER GRANTING SUMMARY JUDGMENT

AND MOTION TO DISMISS

This matter is an appeal of Respondent's denial of the Petition for
Redetermination involving sales/use
tax assessed against Rasmussen Service Center, LLC on its Wisconsin sales to out-of-state
residents of recreational
vehicles and services thereto.

While the Petitioner met the jurisdictional requirements to bring its case before
the Commission, it
failed to follow through after Respondent filed a motion for summary judgment.

Petitioner did not respond in any manner to the briefing order the Commission
sent out on September
15, 2010. Neither did Petitioner respond to two follow-up letters dated October 21, 2010
and November 12, 2010. The
letter of October 21, 2010, specifically stated the following:

If no response to this letter is filed, the Commission may find a failure to
prosecute the appeal.

Section 805.03 Wis. Stats. allows a dismissal for failure to prosecute. Based upon
Petitioner's failure to respond to the
briefing order, and the two follow-up letters, the Commission finds a failure to prosecute
under Section 805.03 Wis.
Stats, and grants Respondent's motion for summary judgment.

Moreover, Respondent has established by use of admission requests, all the
facts necessary to show
that Respondent's assessment herein is accurate. Summary judgment can be based upon a
party's failure to respond
to a request for admissions since such a request can seek an admission that would be
dispositive of the entire case. Bank
of Two Rivers v. Zimmer, 112 Wis. 2d 624, 631, 334 N.W. 2d 230 (1983).

In this case, Respondent sent Request for Admissions on June 15, 2010.
Under Section 804.11(1)(b)
and (2) Wis. Stats., the failure to respond to the Request for Admissions within 30 days is
conclusive establishment of
the matters stated in the admissions. Petitioner failed to respond to the Request for
Admissions even after being verbally
warned by Respondent's Attorney of the consequences of a failure to respond. By failing to
respond, Petitioner in effect
admitted that the adjustments made by the Department were correct. These adjustments dealt
with Petitioner's sale of
snowmobiles and ATV's to out-of-state residents in Wisconsin. (Exh. 4.) Since
snowmobiles and all-terrain vehicles
are tangible personal property, Petitioner's sales of them are subject to sales tax pursuant to
Wis. Stat. § 77.52(1a).
Since no material facts remain at issue, Respondent's motion for summary judgment is
granted. Petitioner's appeal is
denied. The Department's denial of the Petition for Redetermination is affirmed.